Musick v. Jacob Dold Packing Co.

Smith, P. J. This is an action which was brought by plaintiff against defendant to recover damages for personal injuries received by the former in consequence of the negligence of • the latter. The plaintiff had judgment and defendant has appealed. The appealing defendant insists on a reversal of the judgment upon a number of grounds, the first of which is, that upon the facts disclosed by the evidence plaintiff is not entitled to recover. It appears that the defendant is a corporation engaged in packing beef and pork and shipping the same. ■ The plaintiff at the time he was injured was employed by the defendant in the capacity of foreman of the shipping department of its business. A short time previous to this defendant had erected a building — 328 — in connection with its packing house wherein was placed appliances, machinery, etc., for the manufacture of artificial ice. It further appears that in this building defendant maintained a tank filled with hot water heated by exhaust steam. The top of the tank was level with the floor and had no guard rail around it. On submerging the freezing cans the ice therein contained would be thawed loose and when raised out would fall on an inclined plane and slide down to the northwest corner of the building. There are two doors entering the building from the west. The hot water tank was located something like ten or twelve feet back from the front door nearest the southwest corner of the building. The plaintiff was present and assisted in starting the machinery for the manufacturing of the ice. He had been, according to his own testimony, in the building a dozen times or more between its commencement and the time of the accident. He had frequently sent the men under him in the building.' to get out ice. It seems that he must have known from observation the location of the hot water tank. Although the ice plant, as it is called by the witnesses, was in operation, still it was not in every respect complete when the accident happened. The carpenters had not yet put in what is termed a “chair” which was to be used for letting the ice cans down into the tank and then lifting them out, etc. Until the chair was constructed and put in place, a temporary wooden contrivance had been made and used to cover the open tank when not in use. This cover seems to have been sufficient for the purpose. On the day of the injury Mr. Dold, the defendant’s superintendent, ordered the plaintiff to enter the building and get out some icé that was lying on the floor to place in a refrigerator car that was standing on the railway track in front of the building — 329 — The plaintiff testified that, “when I stepped into the door it was dark. The room was full of steam. I could not see and did not know exactly where the hole was, and the first I knew I slipped and I was right into the vat of water, boiling water. I did not come in contact with any railing or anything around the vat. I did not know how long the hole had been in that condition.” “No one went into the ice plant with me. I heard some carpenters at work in there but saw no one. I expected to find the ice on the floor. I knew there was a vat there but could not see where it was. I knew the steam came from the vat and the ice. The first thing I knew after I got into the door I slipped and went right into the vat. I do not remember whether I slipped on a piece of ice or whether just on the slippery floor, my foot slipped under me — I knew the floor was always wet from the ice. I had seen ice lying around on the floor occasionally when I was in there.” The testimony of the carpenters who had been at work on the ice plant- was, that they had preceded the plaintiff some fifteen minutes before the accident and had removed the cover in order to construct a railing around the tank. It does not appear that the plaintiff knew the tank cover had been removed by the carpenters. The law enjoins upon the master the duty to furnish the servant a place where the work is to be carried on that is reasonably safe. This duty is not only enjoined by the law governing master and servant, but it is also imposed upon the master as the owner of the premises by the general law for the protection of all persons lawfully there. Reichla v. Gruensfelder, 52 Mo. App. 43; Dayharsh v. Railroad, 103 Mo. 570; Siela v. Railroad, 82 Mo. 430; Covey v. Railroad, 86 Mo. 632; Dowling v. Allen, 74 Mo. 13; Gibson v. Rail — 330 — road, 46 Mo. 163. The obligation which the general law imposes upon the owner of premises to guard persons lawfully there against pitfalls, may be applied between master and servant, and a failure to comply with this legal duty might under the circumstances, in a given case, authorize a legal inference of negligence on the part of the master. Dowling v. Allen, 74 Mo. 13; Ryan v. Fowler, 24 N. Y. 410; Watting v. Oastler, L. R. 6 Exch. 74; Ormand v. Holland, 96 Eng. Com. Law, 100; Nays v. Smith, 28 Vermont, 59. On the other hand the servant by his contract of employment assumes all the usual and ordinary hazards-of the business. Renfro v. Railroad, 86 Mo. 302; Wood’s Master and Servant, sec. 382. So it has been declared that in an action of this kind it devolves upon the servant to prove that the master failed in some legal duty which he owed to him. If he complains of' defects in the instrumentalities of the business he must show either that the defects. complained of were not-obvious and were unknown to him, but that the master had knowledge thereof or might have had by ordinary inspection; or if the defects were obvious that the danger was not fully appreciated by him for want of time for consideration, or that the increased danger was not so imminent and threatening as to require him to abandon the service. Keegan v. Kavanaugh, 62 Mo. 230; Cummings v. Collins, 61 Mo. 520; McDermot v. Railroad, 67 Mo. 287; Conroy v. Iron Works, 62 Mo. 35; Stoddard v. Railroad, 65 Mo. 414; Thorpe v. Railroad, 89 Mo. 650; Devlin v. Railroad, 87 Mo. 545; Huhn v. Railroad, 92 Mo. 440; Soeder v. Railroad, 100 Mo. 673. In the dissenting opinion of Judge Rombauer, in Fugler v. Bothe, 43 Mo. App. 44, which was approved by the supreme court, 22 S. W. Rep. 1113 — it is stated: “What is meant by a safe place which the master is required to furnish his servant to — 331 — work in or about, is not the obvious or patent safety or unsafety of tbe place because in the nature of things many kinds of labor have to be performed under conditions relatively unsafe and often dangerous.” In this case the defendant to avoid needlessly exposing such of its employees as had occasion^ in the course of their employment to enter the ice plant building to the risk of falling into the hot water tank, had provided a temporary cover for it until a sufficient guard should be constructed around it. At the time the plaintiff entered the building the employees operating the ice plant had quit work — they were not then present. He knew the machinery was not being operated, and had a right to assume the cover was on the tank. He did not know that it had been removed. Owing to the presence of the steam in the building he could not see whether it was on or off. If the plaintiff had known the tank was uncovered and with this knowledge he had ventured into the darkened building to do the work ordered by the superintendent he would have assumed the risk of the danger thus incurred. If a servant knows that there is an open pitfall or tank in the floor of a room that is so dark that its location can not be discovered and with this knowledge enters it to perform some service there for the master, he will be held to assume the risk of the danger incident to such service because such a risk would be perfectly obvious to the sense of any man, whether servant or master. Fugler v. Bothe, supra; Keegan v. Kavanaugh, supra. It was manifestly the duty of the defendant to keep the tank either covered over or guarded when the ice machinery was not in operation. And as it was not in operation at the time plaintiff was ordered to enter the building, if it was to be uncovered for the purpose of constructing a guard around it, the — 332 — defendant should have notified the plaintiff of the fact and especially so since the blinding steam rendered it invisible. If the cover was not on the tank and the plaintiff knew it, the danger was both apparent and threatening. But since the plaintiff had a right to act upon the assumption that it was on, he can not be held to have assumed the risk that otherwise he would. There is evidence which tends to establish a breach of the defendant’s duty to the plaintiff, and that in consequence thereof the plaintiff was injured without fault-On his part. 1 The defendant complains of 'the action of the court in refusing to give its instruction numbered 13, which declared: “If the jury believe from the evidence that the defendant had provided a cover for the dip vat to be used until the chair and railing were completed, and that such cover when properly in place was reasonably safe for the employees in the discharge of their duties and in the exercise of ordinary care, then the court instructs the jury that the defendant is guilty of no negligence and your verdict will be for the defendant.” We can not assent to the proposition asserted by this instruction. It certainly can not be that the bare providing alone of a cover for the tank which when properly in place though reasonably safe for employees discharging their duties with ordinary care, can be substituted for that performance of the duty by defendant which is enjoined upon it by law. Whether the cover was in place at the time of the injury was vital as affecting the question of the defendant’s negligence and should have been embraced within the hypothesis of the instruction; otherwise it was misleading. Neither the construction of the chair nor that of the guard around the tank was part of the work intrusted to the plaintiff and which he had engaged to perform, and therefore plaintiff’s case does — 333 — not fall within the rule of that class cited in Bowen v. Railroad, 95 Mo. loc cit. 277. If the act of th^ carpenters in leaving the tank uncovered under the circumstances was negligence, it was the negligence of the defendant. The defendant further objects that the court below erred in refusing to direct the jury on its-request that if the injury was occasioned by plaintiff slipping upon a piece of ice on the floor which had been left there by one of defendant’s employees, there could be no recovery. There is no evidence adduced that the plaintiff slipped upon a piece of ice. The plaintiff himself testified that he did not know whether he slipped on a piece of ice or whether just on the slippery floor which was always wet. It was not shown that there was any ice at the time lying on the floor at the place where plaintiff slipped. The ice taken out of the cans was not deposited there. It was sent over an inclined plane to a part of the room where it could be conveniently loaded on the ice trucks. Besides this, the negligence charged in. the petition was that the defendant had maintained said vat in an unfinished and incompleted condition, etc. The facts embraced within the assumption of the instruction, if true, would not excuse the defendant from its liability to plaintiff for the injuries alleged to have resulted to plaintiff in consequence of the defendant’s breach of duty. It is true that if the plaintiff had not slipped his limb would not have been plunged into the hot water tank. It is equally true, that though he slipped, the disaster would not have overtaken him had not the tank been uncovered. The slipping was not the sole cause of the injury. The latter would not have occurred except for the presence and coexistence of both causes. The cause of the plaintiff’s slipping was altogether accidental. If it was the sole cause of the — 334 — injury the defendant is not liable. But the injury would not have resulted had not another cause combined with the accidental cause. If the plaintiff was in the exercise of ordinary care and prudence at the time he slipped and the injury is attributable to the absence of the cover over the tank together with the slipping, then the plaintiff should recover. If the direct and proximate cause of the injury was the uncovered and unprotected condition of the tank, then plaintiff would be entitled to recover though the slipping of the plaintiff contributed to the injury. Bassett v. St. Joseph, 53 Mo. 290; Hull v. Kansas City, 54 Mo. 598; Brennan v. St. Louis, 92 Mo. 482; Buck v. Railroad, 46 Mo. App. loc. cit. 566. The plaintiff was the foreman in the shipping department of defendant. It was his duty to see that the refrigerator cars used in defendant’s business were loaded and provided with ice. He had nothing to do with the construction of the building. The carpenters were not under him. Theirs was an independent employment. They were engaged in a different department of defendant’s business. The plaintiff and the carpenters, who removed the tank cover, were no more fellow servants than are a car repairer and a train man in the employ of a railway company. The common employment did not make them fellow servants unless they were engaged in the same department of defendant’s general business, which was not the case. Sullivan v. Railroad, 97 Mo. 113; Condon v. Railroad, 78 Mo. 567; Hall v. Railroad, 74 Mo. 298. The carpenters were not guilty of negligence in removing the cover from the tank, but were in leaving it unguarded. Since the slipping of the plaintiff was not the sole cause of the injury it matters little whether the slip was occasioned by the negligence of a fellow servant or not. It was not as has been stated the direct and proximate — 335 — cause of the injury. This was the negligence of defendant in leaving the tank uncovered and unguarded in any way. The plaintiff certainly had not by reason of his employment assumed the risk arising from the leaving the tank uncovered and unguarded under the circumstances which the evidence tends to show. The removal of the cover of the tank and then leaving it in that condition without notice to plaintiff certainly increased the hazard incident of the work which plaintiff was required to perform in the building. The plaintiff had the right to presume that all proper attention had been given to his safety and that he was not carelessly and needlessly exposed to a risk like this which might have been prevented by ordinary care and precaution on the part of the defendant. Blanton v. Dold, 109 Mo. 64. This case is a very close one on the facts, but we think that there was evidence sufficient to carry it to the jury under proper instructions, which were given. It was tried before an exceedingly careful and painstaking special judge, and with his rulings we can find no fault. The judgment is for the right party and must be affirmed. All concur.